FOR-PROFIT CRUSADERS: THE ACCOMMODATION OF FOR-PROFIT ENTITIES IN THE CONTRACEPTION MANDATE JESSICA N. PAULIK * I. INTRODUCTION

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1 FOR-PROFIT CRUSADERS: THE ACCOMMODATION OF FOR-PROFIT ENTITIES IN THE CONTRACEPTION MANDATE JESSICA N. PAULIK * I. INTRODUCTION [M]y pledge to the American people... is that we re going to solve the problems that are there, we re going to get it right, and the Affordable Care Act is going to work for the American people. 1 President Barack Obama ran for office on a platform that consisted, among other things, of substantial health care, and Medicaid reform. 2 He believed in affordable coverage for all Americans, with a range of options in health care plans for individuals and families to choose from. 3 On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act ( ACA ). 4 The ACA put into place a series of health care reforms across the country, including an individual mandate to obtain and maintain minimum medical insurance coverage and a requirement that Copyright 2015, Jessica N. Paulik. * Jessica N. Paulik, J.D., Capital University Law School (May 2015); B.A. English Literature, Capital University (2012). I want to extend my gratitude and appreciation to Professor Jim Beattie for his enthusiasm and honest advice through this writing process. I would like to thank my family for being a constant source of support and motivation and for always cheering in my corner. Finally, I owe thanks to Seth for his continued patience and encouragement throughout my law school studies and career. 1 Barack H. Obama, President of the United States, News Conference at the White House on the Affordable Care Act (Nov. 14, 2013) (transcript available at post.com/politics/transcript-president-obamas-nov-14-statement-on-healthcare/2013/11/14/6233e352-4d48-11e3-ac54-aa84301ced81_story_1.html). 2 See Kevin Sack, et al., On the Issues: Health Care, N.Y. TIMES, nytimes.com/2008/president/issues/health.html (last visited Dec. 31, 2014) (explaining that Obama favors a larger governmental role in American healthcare with ultimate goals of providing universal coverage and expanding eligibility for Medicaid and other public health plans). 3 See id. 4 Health Care That Works for Americans, THE WHITE HOUSE, /healthreform/healthcare-overview (last visited Dec. 31, 2014) ( On March 23, 2010, President Obama signed the Affordable Care Act into law, putting in place comprehensive reforms that improve access to affordable health coverage for everyone and protect consumers from abusive insurance company practices. ).

2 964 CAPITAL UNIVERSITY LAW REVIEW [43:963 employers and health insurance companies provide certain medical services. 5 Although the American public seemed ready, it did not take long for the constitutionality of the ACA to be challenged. 6 One of the biggest sources of distress regarding the statute arises from the contraception mandate, which requires employers to provide no-cost preventative healthcare, including birth control and sterilizations, to female employees. 7 While arguments from the non-profit sector won the President s approval and gained one of the few exceptions to the mandate, the arguments surrounding for-profit corporations continued to clog the circuit court dockets. 8 Plaintiff corporations and their owners asked courts to recognize their free-exercise of religion, and they continued to demand an exemption under the health care law. 9 These corporations recently found themselves one step closer, as the Supreme Court held the contraception mandate unconstitutional as applied to closely held corporations. 10 This Article analyzes the arguments surrounding the for-profit litigation, beginning with a general background on the ACA and the provisions therein. 11 Next, this Article outlines the original circuit court split and the 5 See, e.g., 26 U.S.C. 5000A(a) (2012); 42 U.S.C. 1396a(a) (2012); 42 U.S.C. 330gg-13(a) (2012). 6 See e.g., Virgina ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (Virginia state sought relief by claiming the ACA violated Virgina s Health Care Freedom Act.); Florida ex rel. McCollum v. U.S. Dep t. of Health & Human Servs., 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (Florida state, two citizens, and a business federation sought relief from the individual mandate of the ACA.); U.S. Citizens Ass n v. Sebelius, 754 F. Supp. 2d 903 (N.D. Ohio 2010) (Association sought relief under the Commerce Clause and other constitutional provisions.). 7 Warren Richey, Supreme Court Contraception Mandate Case Sparks Fierce Debate, CHRISTIAN SCIENCE MONITOR, Nov. 26, 2013, available at USA/Justice/2013/1126/Supreme-Court-contraception-mandate-case-sparks-fierce-debatevideo. 8 See 26 U.S.C. 5000A(d) (e); Dan Merica & Kevin Bohn, Finalized Rules Let Religious Groups Opt Out of Contraception Mandate, CNN (June 28, 2013, 2:54 PM), Jennifer Haberkorn, 5 Key Questions About the Legal Issues of the Contraception Mandate, POLITICO (Jan. 13, 2014, 8:44 AM), html ( The contraceptive coverage issue is already heading to the Supreme Court in two cases brought by for-profit companies. ). 9 Merica & Bohn, supra note Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014). 11 See discussion infra Part II.

3 2015] FOR-PROFIT CRUSADERS 965 Supreme Court decision in Burwell v. Hobby Lobby. 12 While addressing the holding in several places, the analysis focuses on the general precedent that exists and the arguments that support the Supreme Court s ultimate holding. 13 This Article further analyzes the arguments arising out of Free- Exercise claims under the Religious Freedom Restoration Act and the Establishment Clause. 14 The Article identifies an ambiguous middle ground that exists between the First Amendment clauses and determine if an accommodation is required or permitted. 15 Finally, this Article proposes a solution to the overarching church-state issue by arguing that Congress should exercise its Article I spending powers in an attempt to accommodate the religious beliefs of its citizens and businesses. 16 II. PATIENT PROTECTION AND AFFORDABLE CARE ACT The ACA contains nine titles, each describing the major areas affected by this law. 17 The overall purpose of the ACA is to provide immediate improvements, such as eliminating limits on benefits, requiring coverage for preventative services and immunizations, and extending dependent S.Ct (2014); see discussion infra Part II.B. 13 See discussion infra Part III. 14 See discussion infra Part III. 15 See discussion infra Part IV. 16 See discussion infra Part IV. The author acknowledges that between the time this Article was written and the date it was published, the contraception mandate has again been reviewed and additional processes put in place. See, e.g., Lawrence Hurley, Supreme Court Throws Out Obamacare Contraception Ruling, HUFFINGTON POST (Apr. 27, 2015), (discussing a more recent Supreme Court case holding in favor of religious objectors); Kimberly Leonard, After Hobby Lobby, a Way to Cover Birth Control, U.S. NEWS & WORLD REPORT (July 10, 2015, 5:35 PM), news/articles/2015/07/10/after-hobby-lobby-ruling-hhs-announces-birth-controlworkaround (discussing a new accommodation allowing some for-profit companies to notify the federal government about their religious objections and to request opting out of providing coverage for contraceptives. Insurance companies and employees will work out a separate plan for contraceptives.). 17 The Patient Protection and Affordable Care Act Detailed Summary, Democratic Party Communications 1 (last visited Jan. 8, 2015) healthbill04.pdf. These titles include: [q]uality, affordable healthcare for all Americans, [t]he role of public programs, [i]mproving the quality and efficiency of health care, [p]revention of chronic disease and improving public health, [h]ealth care workforce, [t]ransparency and program integrity, [i]mproving access to innovative medical therapies, [c]ommunity living assistance services and supports, [and] [r]evenue provisions.

4 966 CAPITAL UNIVERSITY LAW REVIEW [43:963 insurance coverage until the age of twenty-six. 18 In addition, the Act provides for future medical advances, like preparing for a health insurance market reform, expanding the coverage available in health benefit plans, and requiring shared responsibility to ensure a majority of Americans obtains insurance coverage. 19 Under the ACA, public programs including Medicaid and Children s Health Insurance Program are expected to see an expansion in the number of participants that qualify. 20 The ACA also plans to improve training and provide more support to health care workers and medical professionals. 21 By mid-2012, twenty-six states, along with several private individuals and private businesses, challenged the overall constitutionality of the ACA. 22 After various decisions by lower courts across the country, the Supreme Court determined Congress could neither force individuals into insurance coverage, nor could it require states to participate in the Medicaid expansion. 23 However, it was within Congress s taxing power to tax individuals a nominal amount for not enrolling in the insurance coverage desired by Congress. 24 The rest of the Act remains effective and has yet to be overturned in its entirety. 25 As of January 2014, all non-exempted entities must implement the ACA regulations or face large tax penalties. 26 There are four types of exceptions within the ACA that make an employer exempt from complying with its requirements. The first exception is for employers who employ less than fifty employees; these employers have no duty to provide coverage under the ACA. 27 The second exception to the ACA involves those plans that are grandfathered in. 28 Any individual who had health insurance coverage or was part of a group health plan as of March 23, 2010 is not required to change their existing coverage at at at Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2566 (2012). 23 See id. 24 at See id. at U.S.C. 4980H(a) (2012); see discussion infra Part III.B U.S.C. 4980H(c)(2)(A) U.S.C (a)(1) (2012). 29

5 2015] FOR-PROFIT CRUSADERS 967 Third, certain entities are exempted for one year if they fall under the safe harbor provision. 30 To qualify, such entities must prove three things: that since February 10, 2012, contraception coverage has never been provided by the group health plan because of the employer s religious beliefs; that participants received notice that contraceptives would not be covered under the plan for the first year beginning on or after August 1, 2012; and that the organization certified the criteria by filing documents in accordance with the provision. 31 The final exemption, and the biggest issue surrounding the ACA today, is for religious employers. 32 A religious employer is broadly defined as an organization that is organized and operates as a non-profit entity. 33 A religious employer can be exempted from the mandate if it meets four requirements: 1. The organization opposes providing coverage for some or all of any contraceptive services required to be covered [by the mandate] on account of religious objections. 2. The organization is organized and operates as a nonprofit entity. 3. The organization holds itself out as a religious organization. 4. The organization self-certifies... the criteria in paragraphs [1 3] of this section. 34 This exemption applies only to organizations that fall within the requirements, such as hospitals and universities. 35 Initially, only churches and similar organizations were exempt, and the exception was expanded to include religious nonprofit organizations. 36 This exemption reaches a broad category of employers and seems straightforward, but some non-profit 30 See, e.g., Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 415 (W.D. Pa. 2013) C.F.R (a)(1)(iv)(A) (2013); (a) (a) (b) (2013). 35 Merica & Bohn, supra note 8 (stating that [h]ouses of worship were exempt immediately, and the administration widened those exemptions last year to include other religiously affiliated organizations, like universities and hospitals ). 36 See id.

6 968 CAPITAL UNIVERSITY LAW REVIEW [43:963 organizations still claim that the process outlined above violates their Free Exercise rights. 37 The debate surrounding religious exemptions to the contraception mandate incorporates arguments about the types of organizations that should fall into an exemption, the existence of a corporate conscience, and other moral and ethical issues across the country. 38 Case law deriving from appellate courts became alarmingly fragmented, and after almost a year of split circuit decisions, the Supreme Court granted certiorari to hear two consolidated cases during its 2014 term. 39 A. Religious Objections to the Affordable Care Act and the Contraception Mandate The Affordable Care Act, among other things, requires employers of fifty or more employees to provide health insurance to all employees. 40 These insurance plans must cover certain health care plans with no costsharing requirements. 41 The most controversial provision of this section requires coverage of preventative care and screenings... as provided for in comprehensive guidelines supported by the Heath Resources and Services 37 See Little Sisters of the Poor v. Burwell, BECKET FUND FOR RELIGIOUS LIBERTY, (last visited Nov. 30, 2014). The Little Sisters of the Poor is a non-profit organization that serves the poor, elderly, and dying throughout the world, with thirty homes existing in the United States. They could qualify for a religious employer exemption, but refuse to file the self-certifying affidavit as required by statute. Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225, (D. Colo. 2013). The organization believes that filing the required affidavit will violate their religious beliefs in the same way the contraception mandate would, and they assert First Amendment claims on this issue. The Supreme Court issued a preliminary injunction in early See Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022, 1022 (2014). 38 See Haberkorn, supra note See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct (2014). See also Robert Barnes, Supreme Court to Review Contraceptive Coverage Mandate in Health-Care Law, WASH. POST (Nov. 26, 2013), review-contraceptive-coverage-mandate/2013/11/26/e9627f5a-56bc-11e caf30787c0a9_story.html ( The Supreme Court agreed Tuesday to consider a new challenge to President Obama s Affordable Care Act and decide whether employers with religious objections may refuse to provide their workers with mandated insurance coverage for contraceptives. ) U.S.C. 4980H(a)(1) (2), 4980H(c)(2)(A) (2012) U.S.C. 300gg-13(a).

7 2015] FOR-PROFIT CRUSADERS 969 Administration. 42 This includes contraception methods and sterilization procedures approved by the Food and Drug Administration (FDA). 43 Many objections to this section of the ACA ( the contraception mandate ) arise from non-exempted religious employers. 44 Any employer who does not qualify as a religious employer under the fourth exception must implement the healthcare reform in its entirety, including the contraception mandate, as of January 1, Most of the objecting employers are owners of for-profit corporations who hold religious beliefs contrary to contraception and other beginning-of-life controlling technologies. 46 Even with insurance companies providing the funds for preventative care services rather than forcing the religious employers who may be morally opposed to the healthcare services to violate its traditions and beliefs, for-profit religious organizations were still not satisfied. 47 They argued that the contraception mandate violates their exercise of religious freedom. 48 B. Circuits Split and Call for Supreme Court Guidance As of November 2013, there were over forty-nine cases brought in federal court regarding the contraception mandate and its applicability to for-profit companies. 49 The Third and Sixth Circuits ruled against for-profit plaintiffs opposing the mandate, 50 while the Seventh, Eighth, Tenth, and gg-13(a)(4). 43 See 29 C.F.R (a) (2013). 44 See Merica & Bohn, supra note 8 (showing that the act required that insurers provide, at no cost to those insured, all forms of contraception approved by the Food and Drug Administration ). 45 (recognizing many groups across a wide spectrum of faiths many that teach that contraception is morally wrong covered by the mandate ). 46 See infra notes and accompanying text. 47 Merica & Bohn, supra note See, e.g., Tom Howell Jr., Obama Stands Firm on Birth Control Mandate for Religious Groups, WASH. TIMES (June 28, 2013), obama-not-backing-down-contraception-mandate/?page=all ( The final decision is unlikely to satisfy America s bishops and other religious leaders who flatly rejected the accommodation when it was published in February. ). 49 HHS Mandate Information Central, BECKET FUND FOR RELIGIOUS LIBERTY, (last visited Jan. 9, 2015). 50 See Conestoga Wood Specialties Corp. v. Sec y of U.S. Dep t of Health & Human Servs., 724 F.3d 377, (3d Cir. 2013), cert. granted sub nom. Conestoga Wood Specialties Corp. v. Sebelius, 134 S. Ct. 678 (2013), and rev d and remanded sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct (2014); Autocam Corp. v. Sebelius,

8 970 CAPITAL UNIVERSITY LAW REVIEW [43:963 D.C. Circuits ruled in favor of such plaintiffs. 51 This difference of opinion among the circuit courts led to two petitions for certiorari to the United States Supreme Court, which were granted and heard in the 2014 Supreme Court term. 52 Most of the challenges to the mandate involve an argument under the Religious Freedom Restoration Act of 1993 ( RFRA ), with claims that the mandate violates for-profit corporations free exercise of religion The Third and Sixth Circuits hold that for-profit corporations are not entitled to protection under the First Amendment and must to implement the new health care laws Many commentators join the debate over for-profit implementation of the contraception mandate, arguing whether corporations are separate legal entities apart from their owners and whether those entities cannot have a 730 F.3d 618, 620 (6th Cir. 2013), cert. granted, judgment vacated sub nom. Autocam Corp. v. Burwell, 134 S. Ct (2014), abrogated by Burwell, 134 S. Ct. at See Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), cert. denied sub nom. Burwell v. Korte, 134 S. Ct (2014); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Annex Med., Inc. v. Sebelius, No , 2013 WL (8th Cir Feb. 1, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), cert. granted, 134 S. Ct. 678, and aff'd sub nom. Hobby Lobby Stores, Inc., 134 S. Ct. at 2751; Armstrong v. Sebelius, 531 F. App x 938 (10th Cir. 2013); Newland v. Sebelius, 542 F. App x 706 (10th Cir. 2013), cert. denied sub nom. Burwell v. Newland, 134 S. Ct (2014); Gilardi v. U.S. Dep t of Health and Human Servs., 733 F.3d 1208 (D.C. Cir. 2013), cert. granted, judgment vacated, 134 S. Ct (2014), and cert. denied, 134 S. Ct (2014); see also Sheri Qualters, Ruling Against Contraception Mandate Deepens Circuit Split, NAT L L.J. (Nov. 11, 2013) 32 (discussing the divergent views among the various federal appellate courts). 52 Burwell, 134 S. Ct. at 2751 (2014); see also Sarah Pulliam Bailey, U.S. Asks Supreme Court to Review Hobby Lobby s Birth Control Mandate Challenge, RELIGION NEWS SERV. (Sept. 20, 2013), The two cases fell on both sides of the argument; Hobby Lobby resulted in favor of the corporation at the circuit court level, while Conestoga led to a holding for the government. See generally Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Conestoga Wood Specialties Corp. v. Sec y of U.S. Dep t. of Health and Human Servs., 724 F.3d 377 (3d Cir. 2013). 53 Bailey, supra note 52 ( [The] petition from the Obama administration to the high court raises the issue central in the 1993 Religious Freedom Restoration Act, which says the government shall not substantially burden a person s exercise of religion unless that burden is the least restrictive means to further a compelling interest. ).

9 2015] FOR-PROFIT CRUSADERS 971 separate corporate conscience. 54 Only the Third and Sixth Circuits held that for-profit corporations are unable to maintain action under the First Amendment or RFRA. 55 In an expedited motion for stay pending appeal, the Third Circuit denied relief to plaintiff Conestoga Wood Specialties Corporation, a secular forprofit corporation. 56 Five of its major shareholders are practicing Mennonite Christians whose faith requires them to operate Conestoga in accordance with their religious beliefs and moral principles. 57 The appellate court upheld the district court s denial of a preliminary injunction because Conestoga failed to meet the four requirements of preliminary injunction relief: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. 58 Ultimately, the Third Circuit took the position that Conestoga did not prove likely success on the merits because, as a secular-for-profit corporation, it is unable to exercise rights under the First Amendment or the RFRA because it is not a person. 59 When addressing the owners rights, the Third Circuit upheld the district court s finding that the contraception mandate is neutral and is not targeted at any one religion, so it passes muster under First Amendment analysis See, e.g., Kelly Wiese Niemeyer, Contraception Mandate Debate Leads to Worrisome Corporate Conscience Concept, Law Professor Warns, WASHINGTON U. IN ST. LOUIS (Oct. 3, 2013), 55 Conestoga Wood, 724 F.3d at 389; Autocam Corp., 730 F.3d at Conestoga Wood Specialties Corp. v. Sec y of U.S. Dep t. of Health and Human Servs., No , 2013 WL , at *3 (3d Cir. Feb. 8, 2013). 57 at *6 (quoting Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 402 (E.D. Pa. 2013)). 58 at *1 (quoting Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)). 59 at *2 (agreeing with the District Court s decision in Conestoga Wood, 917 F. Supp. 2d at 411). 60 ( Because a neutral law of generally applicability [sic] need only be rationally related to a legitimate government objective to be upheld and the government demonstrated that the regulations... under the Free Exercise Clause were not likely to succeed. (citing Conestoga Wood, 917 F. Supp. 2d at 410). But see 42 U.S.C. 2000bb-1 (2012) (stating that [g]overnment shall not substantially burden a person s exercise of religion even if the burden results from a rule of general applicability... [g]overnment may substantially burden a person s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. ).

10 972 CAPITAL UNIVERSITY LAW REVIEW [43:963 According to the Third Circuit, the burden of the contraception mandate is analyzed under a rational basis test, and it easily passes this scrutiny. 61 Finally, Conestoga would not be able to pass the substantial burden required by RFRA because the burdens associated with the ACA would be too attenuated to be considered substantial and that any burden on the [plaintiff s] ability to exercise their religion would be indirect. 62 The Third Circuit also denied Conestoga s claim that the religious employer exception is violative of the Establishment Clause on the grounds that it applies equally to organizations of every faith and does not favor one denomination over another, and does not create excessive government entanglement with religion. 63 After denying the motion for stay, the Third Circuit heard the full appeal later in The court found that, despite Conestoga s arguments, a secular, for-profit corporation did not have the right to First Amendment protections. 65 Furthermore, for the same reason, Conestoga could not bring a claim under RFRA. 66 Finally, the Third Circuit held that the owners of Conestoga cannot have pass through claims because the contraception mandate has no effect on the owners personally. 67 Because none of the claims asserted could be maintained, the court ultimately affirmed the district court decision and upheld the denial of injunction. 68 Conestoga went on to be one of the cases heard by the Supreme Court. 69 The Sixth Circuit joined the Third Circuit s outlook in September 2013 when Autocam Corporation brought a motion for injunction. 70 Autocam Corp. joined Autocam Medical, LLC. in the case; both companies are owned and operated by the Kennedy family, who are practicing Roman Catholics. 71 Just as Conestoga claimed, the Kennedys and Autocam claimed that the corporation must either comply with the contraception mandate and violate 61 Conestoga Wood, 2013 WL , at *2. 62 (citing Conestoga Wood, 917 F. Supp. 2d at 414). 63 (citing Conestoga Wood, 917 F. Supp. 2d at 416). 64 See Conestoga Wood Specialties Corp. v. Sec y of U.S. Dep t. of Health and Human Servs., 724 F.3d 377, (3d Cir. 2013). 65 at at at See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct (2014). 70 See Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013). 71 at 620.

11 2015] FOR-PROFIT CRUSADERS 973 the beliefs of the owners church, or face significant fines. 72 The Roman Catholic Church teaches that artificial contraception and sterilization are immoral, and the Kennedys believe that they cannot cooperate with the contraception mandate without violating those moral standards. 73 The Sixth Circuit held that the Kennedys did not have standing to bring RFRA claims arising from an obligation on their closely-held corporation 74, and Autocam, as a corporation, is not able to bring claims under RFRA and the First Amendment. 75 Mirroring the Third Circuit, the Sixth Circuit held that Autocam is not a person capable of religious exercise as intended by the RFRA. 76 It supported its conclusion by looking to Supreme Court precedent and Congressional enactments, which recognize that free exercise rights are intended for use by individuals and non-profit corporations, not for secular corporations. 77 The Sixth Circuit noted that allowing the term person to include for-profit corporations, as Autocam suggested, would lead to a significant expansion of the scope of the rights the Free Exercise Clause protected. 78 The Sixth Circuit also acknowledged that its sister circuits have held... a corporate entit[y] which [is] organized expressly to pursue religious ends... may have cognizable religious liberties independent of the people who animate them, even if they are profit seeking. 79 However, the Sixth Circuit declined to extend such independent rights beyond non-profit entities. 80 Accordingly, the Sixth Circuit upheld the district s denial of an injunction at Autocam, 730 F.3d at at (quoting Grote v. Sebelius, 708 F.3d 850, 856 (7th Cir. 2013). 80 at (noting that [plaintiff s] attempt to fill this void by relying on freedom of speech cases... is unavailing.... No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA. The Free Exercise Clause and Free Speech Clause of the First Amendment have historically been interpreted in very different ways. ). 81 at 628.

12 974 CAPITAL UNIVERSITY LAW REVIEW [43: The Seventh, Eighth, Tenth, and D.C. Circuits hold that corporations are entitled to protection under the First Amendment and are granted relief from the mandate. Although two circuits decided cases against for-profit plaintiffs seeking injunction from the contraception mandate, the majority of circuits that considered this issue held the contrary. 82 These courts recognized a forprofit corporate claim under the First Amendment and RFRA and issued a preliminary injunctions. 83 The Seventh Circuit first took this side of the debate by issuing a preliminary injunction, pending appeal, in December The Roman Catholic owners of a construction firm, the Korte family, opposed the contraception mandate when they wanted to implement an insurance plan without coverage for contraception. 85 Using the same preliminary injunction test as the Third and Sixth Circuits, the Seventh Circuit found that the Korte s established both a reasonable likelihood of success on the merits and irreparable harm, and that the balance of harms tips in their favor. 86 Unlike the Third and Sixth Circuits, the Seventh Circuit found that the plaintiff s operat[ion of] their business in the corporate form is not dispositive of their claim. 87 As a for-profit corporation and significant owners of the corporation, the plaintiffs could assert a claim under the First Amendment and RFRA. 88 The court recognized the religious-liberty violation at issue... the coerced coverage or contraception, abortifacients, sterilization, and related services that imposes a substantial burden on the Korte family in choosing 82 See HHS Mandate Information Central, supra note See Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Annex Med., Inc. v. Sebelius, No , 2013 WL (8th Cir. Feb. 1, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Armstrong v. Sebelius, 531 F. App x 938 (10th Cir. 2013); Newland v. Sebelius, 542 F. App x 706 (10th Cir. 2013); Gilardi v. U.S. Dep t of Health and Human Servs., 733 F.3d 1208 (D.C. Cir. 2013). 84 See Korte v. Sebelius, 528 F. App x. 583, 588 (7th Cir. 2012). 85 at 585 (explaining that the Korte s discovered their existing health plan covers contraception, and they want to terminate that coverage and implement new coverage that is in line with their religious beliefs. As of January 1, 2013, the Korte s are required to implement health care coverage that covers contraception, as required by the ACA.). 86 at at at

13 2015] FOR-PROFIT CRUSADERS 975 to provide coverage or face fines. 89 The government only has a generalized interest in having access to recommended preventative health services and ensuring that decisions about... contraception... are made by a woman and her doctor not by her employer or insurer. 90 Although the court did not address whether this interest was a compelling governmental interest, they did find that the government had not even advanced an argument on the least restrictive burden prong. 91 Because of these factors, the court found that the Korte family had established the irreparable harm needed to win a preliminary injunction. 92 The court also balanced the harms in issuing a preliminary injunction and found that the scale tipped in favor of the Kortes. 93 The government s goal of increasing cost-free access to contraception and sterilization is not insignificant, but is outweighed by the harm to the substantial religiousliberty interests on the other side. 94 The Seventh Circuit issued the initial preliminary injunction, 95 and in the full en banc appeal, the Seventh Circuit remanded the case to the district court to grant the preliminary injunctions in favor of the Kortes. 96 The Seventh Circuit later reaffirmed its position on the issue in January 2013 for a Catholic-owned manufacturing plant. 97 The Tenth Circuit ruled in favor of secular, for-profit corporations, including what is probably one of the most popular and publicized cases to arise on this issue, Hobby Lobby Stores v. Sebelius. 98 The owners of Hobby Lobby follow Christian ideals and run their stores in accordance with these beliefs. 99 The court came to many influential conclusions in the case: For- 89 at 587 (emphasis in original). 90 Korte, 528 F. App x at Korte v. Sebelius, 735 F.3d 654, 687 (7th Cir. 2013). 97 See Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (The court held that as in Korte, the government has not, at this juncture, made an effort to satisfy strict scrutiny.... [T]he Grote Family and Grote Industries have established a reasonable likelihood of success on the merits of their RFRA claim. We also conclude they will suffer irreparable harm absent an injunction pending appeal, and the balance of harms tips in their favor. ). 98 Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013). 99 at 1122 ( [T]he Greens have organized their businesses with express religious principles in mind. For example, Hobby Lobby s statement of purpose recites the Greens

14 976 CAPITAL UNIVERSITY LAW REVIEW [43:963 profit corporations can take advantage of RFRA and First Amendment protections; 100 the contraception mandate places a substantial burden on corporations by pressuring the company to violate its sincere religious beliefs ; 101 the government interests in public health and gender equality are important, but nonetheless in this context do not satisfy the Supreme Court s compelling interest standards ; 102 and that even if the interest was compelling, it [was] not explained how those larger interests would be undermined by granting Hobby Lobby... their requested exemption. 103 This case is the second of its kind heard by the Supreme Court. 104 The Tenth Circuit issued two subsequent orders in September and October The former remanded the case to the district court for decision on a preliminary injunction, which resulted in granting the preliminary injunction, and the latter upheld a district court grant of a preliminary injunction. 105 The D.C. Circuit issued its own opinion in November regarding two Catholic brothers who own closely-held corporations. 106 The court found that the brothers religious beliefs were substantially burdened and the purported government interest was sketchy and highly abstract. 107 Again, although the government interest may be compelling, the court thought that there were less restrictive means available and held that the district court erred by denying the motion for preliminary injunction. 108 commitment to [h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles. ). 100 at 1129 ( [W]e hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA s protections. Such corporations can be persons exercising religion for the purpose of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations. ). 101 at at at See Burwell v. Hobby Lobby, 134 S. Ct (2014); Barnes, supra note See Armstrong v. Sebelius, 531 F. App x 938 (10th Cir. 2013), remanded, No. 13- CV RBJ, 2013 WL (D. Colo. Sept. 17, 2013); Newland v. Sebelius, 542 F. App x 706 (10th Cir. 2013). 106 Gilardi v. U.S. Dep t. of Health and Human Servs., 733 F.3d 1208, 1210 (D.C. Cir. 2013) ( Two brothers... are equal owners of Freshway Foods and Freshway Logistics both companies are closely-held corporations.... As adherents of the Catholic faith, the Gilardis oppose contraception, sterilization, and abortion. ). 107 at See id. at 1224.

15 2015] FOR-PROFIT CRUSADERS 977 Finally, the Eighth Circuit found in favor of for-profit corporations, but in a weaker way. 109 In a motion for preliminary injunction pending appeal, the Catholic owner of a medical device manufacturer won the court s favor, even though the company was not required to provide medical insurance to its employees. 110 The court clarified the uncertainty of one of its previous unpublished, non-binding rulings, which ordered an injunction pending appeal, by stating that it did pass the test for a preliminary injunction pending appeal. 111 Both appeals have just passed oral argument and have yet to be decided. 112 III. CONSTITUTIONAL CONSIDERATIONS ON WRIT OF CERTIORARI In its spring 2014 term, the Supreme Court heard arguments from forprofit corporations and the government on the contraception mandate and issue. 113 The biggest points of contention between the parties included the validity of for-profit claims under the First Amendment and RFRA 114 as well as a strict scrutiny analysis, mainly on the government s compelling interest and least restrictive means prong See Annex Med., Inc. v. Sebelius, No , 2013 WL (8th Cir. Feb. 1, 2013). 110 at *1 ( Lind complains, however, that the mandate prevents him from offering a group health plan to Annex Medical employees that he can purchase without violating his religious beliefs. ). 111 at *3 ( While the O Brien panel issued an order without discussion, and an unpublished order is not binding precedent, there is a significant interest in uniform treatment of comparable requests for interim relief within this circuit. We therefore conclude... that appellants motion for preliminary injunction... should be granted. ). 112 See Qualters, supra note See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct (2014). The Supreme Court addressed the applicability of RFRA and performed a strict scrutiny analysis on the contraception mandate. See generally id. The Court ultimately held the mandate unconstitutional in relation to closely held for-profit corporations. This article continues to outline arguments surrounding the case, while also pointing out positions from the Supreme Court s decision. 114 Burwell, 134 S. Ct. at 2759, 2767; Brief for Respondents at 14, Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), petition for cert. granted, 134 S. Ct. 678 (2013); Brief for Petitioners at 12 13, Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d 377 (3rd Cir. 2013), petition for cert. granted, 134 S. Ct. 678 (2013). 115 Burwell, 134 S. Ct. at ; Brief for Respondents, supra note 114 at 15; Brief for Petitioners, supra note 114 at

16 978 CAPITAL UNIVERSITY LAW REVIEW [43:963 The First Amendment of the United States Constitution prohibits Congress from mak[ing] [a] law respecting an establishment of religion, or prohibiting the free exercise thereof. 116 Some of the earliest cases of the American judicial system recognized this liberty interest and helped root it into the American way of life. 117 Government may not require people to follow any religious belief, 118 penalize individuals because of their religious beliefs, 119 or use its taxing and spending power to prevent the spread of religious ideals. 120 On the same note, the Establishment Clause purports to prevent sponsorship, financial support, and active involvement of the sovereign in religious activity. 121 Working together, these two clauses assumedly strike a balance between the practice of religion and the interference of federal government. This balance is often harder to accomplish than it may seem in the plain language of the Constitution, as seen through the arguments surrounding the ACA. 122 The ACA arguably violates the Free Exercise Clause, while passing pretty clear of the Establishment Clause. 123 However, if the government had successfully argued against free exercise violations, the ACA would then possibly fall into the play in the joints of the two clauses; this means it would not violate either clause and would fit between the restrictions imposed by them. 124 In that instance, there would still be reasonable and permissible alternatives 116 U.S. Const. amend. I. 117 See Arver v. United States, 245 U.S. 366, 390 (1918) (declaring an establishment of religion or an interference with the free exercise thereof repugnant to the First Amendment ). 118 Torcaso v. Watkins, 367 U.S. 488, 493 (1961) (The Federal Government cannot pass laws which aid one religion... force [or] influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. ). 119 Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (distinguishing that it plainly shows that a religious service of Jehovah s Witnesses is treated differently than a religious service of other sects ). 120 Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943) (upholding the idea that [i]t could hardly be denied that a tax laid specifically on the exercise of those [religious] freedoms would be unconstitutional ). 121 Walz v. Tax Comm n, 397 U.S. 664, 668 (1970). 122 See discussion infra Part II.B. 123 See discussion supra Part III.C. 124 Ronald J. Krotoszynski, Jr., If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith, 102 NW. U. L.R. 1189, 1259 (2008) ( The Supreme Court has repeatedly noted that play in the joints exists between the Establishment and Free Exercise Clause. That is, a potential conflict exists between a clause that disallows governmental preferences in favor of religion... and a companion clause that explicitly safeguards religion from adverse government action. ).

17 2015] FOR-PROFIT CRUSADERS 979 available to Congress for accommodating religious beliefs in America. Because the Supreme Court did not articulate what the government must do in order to make the mandate constitutional, 125 these options could still be considered by the Department of Health and Human Services. A. For-profit standing to bring First Amendment claims Before addressing claims by for-profit corporations in the contraception mandate debate, the first question is whether for-profit corporations or the owners are offered protection by the First Amendment and RFRA. 126 As discussed above, 127 the Third and Sixth Circuits denied First Amendment protections for for-profit corporations, 128 while the Seventh, Eighth, Tenth, and D.C. Circuits allowed for-profit claims to stand. 129 The Supreme Court ultimately agreed with the latter group of circuit courts and held the mandate unconstitutional. 130 In its stance against for-profit free exercise, the government argued that the guarantee is purely personal and unavailable to protect for-profit entities. 131 It further asserted that because the language of RFRA itself uses person, it excludes for-profit corporations from its protection. 132 In ruling on the matter, courts have looked to RFRA s context, legislative intent, 133 and the history of American case law. 134 In spite of one 125 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014). 126 See, e.g., Hobby Lobby v. Sebelius, 723 F.3d 1114, 1121 (10th Cir. 2013); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377, 382 (2013). 127 See discussion, supra Section II.B Conestoga Wood, 724 F.3d at ; Autocam Corp. v. Sebelius, 730 F.3d 618, 628 (2013). 129 See Korte v. Sebelius, 735 F.3d 654, 659 (7th Cir. 2013); Grote v. Sebelius, 708 F.3d 850, (7th Cir. 2013); Annex Med., Inc. v. Sebelius, No , 2013 WL , *3 (8th Cir. 2013); Hobby Lobby, 723 F.3d at 1129 (10th Cir. 2013); Armstrong v. Sebelius, 531 F. App x 938, 939 (10th Cir. 2013); Newland v. Sebelius, 542 F. App x 706, 709 (10th Cir. 2013); Gilardi v. U.S. Dep t of Health and Human Servs., 733 F.3d 1208, 1216 (D.C. Cir. 2013) (allowing the owners of the corporation to bring a claim under the shareholderstanding rule ). 130 Burwell, 134 S. Ct. at at 2767; Conestoga Wood, 724 F.3d at 383 (citing U.S. v. White, 322 U.S. 694, (1944)). 132 Burwell, 134 S. Ct. at 2769; Autocam, 730 F.3d at Burwell, 134 S. Ct. at ; Autocam, 730 F.3d at Burwell, 134 S. Ct. at ; Conestoga Wood, 724 F.3d at 385.

18 980 CAPITAL UNIVERSITY LAW REVIEW [43:963 of the biggest Supreme Court cases on for-profit free speech, 135 two circuit courts refused to allow a for-profit exercise of religion. 136 The Third Circuit was unable to determine that the nature, history, and purpose of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. 137 The court arrived at this decision based on the fact that a total absence of case law on free exercise rights separates it from the free speech rights addressed in Citizens United v. Federal Election Commission. 138 Similarly, the Sixth Circuit seemed to rely on the differences between non-profit and for-profit corporations, as well as the differences between the Free Exercise Clause and the Free Speech Clause. 139 The court held that its recognition of rights for corporations... under the Free Speech Clause... does not require the conclusion that Autocam is a person that can exercise religion for purposes of RFRA. 140 On the other side of the argument, the for-profit corporations have cited heavily to the Citizens United case decided by the Supreme Court in In this case, the Court overruled its previous decision which prevented corporations from obtaining an economic advantage, specifically because corporations enjoy special advantages such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets. 142 In overruling its precedent, the Supreme Court further held that [g]overnment may not suppress political speech on the basis of the speaker s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations Citizens United v. Fed. Election Comm n, 588 U.S. 310, 315 (2010) (holding that Government may not suppress political speech based on of the speaker s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or forprofit corporations. ). 136 Conestoga Wood, 724 F.3d at 389; Autocam, 730 F.3d at Conestoga Wood, 724 F.3d at 385 (citing First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978). 138 at ; Citizen United, 558 U.S. 310 (2010). 139 Autocam, 730 F.3d at 626, at Citizens United, 558 U.S. 310 (2010). 142 at , at 365.

19 2015] FOR-PROFIT CRUSADERS 981 In the context of the contraception mandate, courts acknowledge that RFRA does not define person. 144 Therefore, many courts look to the Dictionary Act for guidance in defining the term. 145 As defined, the word person expressly includes corporations. 146 Other statutes help to contextualize the ACA and refute the government s argument that non-profit and for-profit entities should be treated differently. 147 The Tenth Circuit decided that Congress is quite capable of narrowing the scope of a statutory entitlement or affording a type of statutory exemption when it wants to, 148 and given the lack of other persuasive reason[s], it ultimately decided that Congress wanted to include for-profit corporations in the scope of RFRA. 149 The Seventh Circuit went further and stated that the Free Exercise Clause protects not just belief and profession but also religiously motivated conduct... and individuals and organizations whether incorporated or not can exercise religion. 150 The Supreme Court also saw nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition. 151 The Supreme Court had never addressed for-profit corporate free exercise rights directly, 152 so it was an instance of first impression when the Court heard the petitions in its spring term of While valid arguments exist both ways, the Supreme Court cited not only prior case law, but congressional intent and context as well. 153 In the interest of completeness, the analysis of First Amendment and RFRA claims is outlined in the following sections See, e.g., Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, (2014); Korte v. Sebelius, 735 F.3d 654, 674 (7th Cir. 2013) Korte, 735 F.3d at Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1130 (10th Cir. 2013) ( Under Title VII, for example, the prohibition on discrimination on the basis of religion does not apply to an employer that is a religious corporation, association, educational institution, or society. (citing 42 U.S.C. 2000e-1(a) (2012)) at Korte, 735 F.3d at 679 (emphasis in original). 151 Burwell, 134 S. Ct. at See Conestoga Wood Specialties Corp. v. U.S. Dept. of Health & Human Serv., 724 F.3d 377, (3rd Cir. 2013); Hobby Lobby, 723 F.3d at Burwell, 134 S. Ct. at See discussion infra Parts III.B C.

20 982 CAPITAL UNIVERSITY LAW REVIEW [43:963 B. Free Exercise Clause The Supreme Court once stated that the provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. 155 The doctrine of free exercise recognizes that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to free exercise of religion. 156 To assert a free exercise claim, the complaining party must assert a substantial burden on a sincere religious belief, which then shifts the burden to government to prove a compelling interest. 157 As the law developed over time, the Supreme Court determined that a law of general applicability is incapable of violating the First Amendment. 158 As a direct effect of this decision, Congress enacted the Religious Freedom Restoration Act of 1993 in order to protect the rights of Americans. 159 The general provision says that government may not burden the exercise of religion in any case, even if the regulation is one of general applicability. 160 The only exception where the federal government can enforce such a burden is to pass strict scrutiny; it must not only prove that the regulation is in furtherance of a compelling governmental interest, but also that it is employing the least restrictive means of furthering that compelling governmental interest. 161 Although the statute was ruled unconstitutional as applied to state governments, 162 RFRA apparently still restricts the federal government from intruding into religion. 163 Thus, in analyzing whether the 155 Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). 156 at Sherbert v. Verner, 374 U.S. 398, 403 (1963) (showing that if the government s actions are to stand, it must be because any incidental burden on the free exercise of appellant s religion may be justified by a compelling state interest in the regulation of a subject within the State s constitutional power to regulate ). 158 Emp t. Div., Dep t. of Human Res. of Oregon v. Smith, 494 U.S. 872, (1990). 159 See 42 U.S.C. 2000bb-1 (2012) [hereinafter RFRA ]; City of Boerne v. Flores, 521 U.S. 507, (1997) (confirming that Congress enacted RFRA in response to the Court s decision in [Emp t. Div. v. Smith]. ). 160 RFRA, supra note 159, at (a). 161 at (b). 162 City of Boerne, 521 U.S. at While the Supreme Court has not directly addressed the issue after City of Boerne held RFRA unconstitutional for state purposes, it has assumed its applicability to issues relating to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 439 (2006) (acknowledging that Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with